Articles Posted inDNA

Following on the heels of the United States Supreme Court’s decision in Bullcoming v. New Mexico which this blog addressed in June, and adopting the reasoning of that case, the Maryland Court of Appeals has upheld a criminal defendant’s right to confront the testimonial witnesses against him, in a case that could have long-reaching ramifications for cases relying on DNA evidence.

In Derr v. State, the Maryland Court of Appeals addressed whether the reports created by DNA analysts, without those analysts’ in-court testimony supporting those reports, was admissible into evidence. At trial, Derr was found guilty of a December 1984 rape. The State submitted into evidence three reports showing DNA analyses (dated 1985, 2002, and 2004), supported only by the testimony of a supervisory DNA analyst who had not been personally involved in the performing the forensic tests or creating the reports.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” Similar language is found in Article 21 of the Maryland Declaration of Rights. As the Court of Appeals noted in Derr, the purpose of the protected right is two-fold: to provide the defendant with the opportunity for cross-examination, and to also provide the judge and jury the opportunity to observe the witness’ demeanor.

This right of a defendant to confront the witnesses the State uses against him or her is broader than simply the right to cross-examine the human witnesses that take the stand. As the Court of Appeals found in this case, the right also extends to situations where the State is using an out-of-court statement, such as a DNA analysis created in a lab. Such a statement, if used as the functional equivalent of in-court testimony, is called a “testimonial statement.” The Court held that “any statement made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” is testimonial in nature. These DNA analysis reports were ruled to be testimonial statements. Under the Sixth Amendment, the defendant has the right to cross-examine the person who made the “testimonial” analysis. The Court ruled that the forensic evidence against Derr was inadmissible because the analysts who performed the tests of the evidence presented against him did not testify, and reversed his conviction.Continue reading

The Maryland Court of Appeals recently issued an opinion in Blake v. State reemphasizing the requirements for the State in responding to post-conviction requests for DNA testing. The Court held that in entertaining a petition, a Circuit Court must “(1) identif[y] the most likely places where the evidence might be found, (2) require[] a thorough search of each place that should be searched, and (3) provide[] for an “on-the-record” determination of whether the search conformed to the requirements” of the Maryland Courts and Judicial Proceedings Article.

Although the Court’s opinion addresses access to DNA evidence in a post-conviction setting, the appropriate use of DNA evidence – or the exclusion of DNA evidence – is vital in the pre-trial stage, as well as while a criminal trial is ongoing. A Maryland criminal defense attorney experienced with the use of DNA evidence can be the difference between a conviction or an acquittal in cases where DNA evidence is central to the prosecution’s case.

DNA evidence can take on a number of identities in the legal system. DNA evidence can be a sword for the prosecution, because a positive DNA match to a criminal defendant is extremely effective in convincing a jury of that defendant’s guilt. DNA evidence can also be a shield in certain circumstances, however, using the same force it carries with a jury to show a defendant’s innocence. In other circumstances, DNA testing results can be inconclusive, a result that can also act as a tool in a defense attorney’s arsenal.

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